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Citizenship Bias Under Supreme Court Review

May 26, 1999
For over a century, a Reconstruction Era civil rights law (42 USC Section 1981) has been thought of as a tool to combat racial discrimination. Now, for the second time in four years, the US Supreme Court has agreed to consider whether the law also prohibits discrimination on the basis of citizenship (the first time, the case under review was settled before the Court reached a decision). If the High Court agrees with the federal appeals court in New York City, the cost of distinguishing between citizens and non-citizens goes way up.

Note that Title VII of the Civil Rights Act of 1964 does not protect employees from discrimination on the basis of citizenship. Only one federal law, the Immigration Reform and Control Act of 1986 (IRCA), prohibits citizenship discrimination in employment.

There are striking differences between IRCA and Section 1981:

Immigration Reform and Control Act (IRCA)

Section 1981

  • IRCA does not apply to employers with three or fewer employees.
  • Section 1981 has no numerical threshold for coverage.
  • IRCA bars employers from engaging in citizenship discrimination when referring, recruiting, hiring and discharging.
  • Section 1981 bans discrimination in the making and enforcement of contracts, including employment contracts. Section 1981 applies to all aspects of the contractual process and relationship, and covers all forms of workplace discrimination
  • Violations of IRCA are remedied administratively. An administrative law judge may order the hiring of adversely affected individuals, with or without two years of back pay. Charges must be filed within 180 days.
  • Violations of Section 1981 are remedied through civil lawsuits and jury trials. Legal and equitable relief is available, including unlimited compensatory and punitive damages. State personal injury time limits apply.
  • Under IRCA, employers have the explicit right to give a citizen preference over an equally qualified legal alien.
  • Over 17.6 million documented aliens were living in the United States in 1990, plus an estimated additional 5 million undocumented aliens.

    Facts of the case under review
    Linden Anderson immigrated to the United States from Jamaica in 1968 and began working for the carpenters’ union in 1973. In 1992 he was elected to the position of business representative of Local 17. At that time, the union's constitution required that union officials be citizens of the country in which their local is located.

    In 1994, Anderson was removed from his position after being told that he was ineligible to serve as business representative because of his lack of US citizenship. He sued, claiming alienage discrimination in violation of Section 1981. The Court of Appeals for the Second Circuit ruled in his favor, finding that Section 1981 prohibits private alienage discrimination.

    Arguments that Section 1981 applies to citizenship
    According to the Second Circuit, private alienage discrimination has been outlawed by Section 1981 since 1991, at least. The Civil Rights Act of 1991 amended Section 1981 by adding language that explicitly extended the law to private parties.

    The court looked at the juxtaposition of the words "persons" and "citizens" in Section 1981 to determine that the law proscribes alienage discrimination. The law states that:

    All persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens ...

    Arguments that Section 1981 does not apply to citizenship
    The union argues that the Second Circuit’s decision "ushered in a broad national policy prohibiting employers, and all other private contracting parties, from distinguishing between citizens and non-citizens—a distinction which Congress itself now draws" by requiring that federal civil service employees be US citizens.

    It is doubtful that Section 1981 has ever prohibited alienage discrimination of any sort, asserts the union, pointing out a legion of cases holding that Section 1981 prohibits solely racial discrimination. The law does not expressly prohibit alienage discrimination.

    Because Congress has declined to protect aliens under Title VII for the 35 years since its enactment, it seems clear that Congress would not protect aliens with the even broader remedies available under Section 1981, the union reasons. Moreover, protecting aliens under Section 1981 would conflict with IRCA’s comprehensive approach to the entire field of immigration control, notes the union. IRCA proscribes the hiring of illegal aliens.

    The Supreme Court’s decision is expected during the Court’s 1999-2000 term.

    Cite: United Brotherhood of Carpenters and Joiners of America v. Anderson, USSCt Dkt No. 98-958, cert granted April 26, 1999. Reviewing Anderson v. Conboy (2dCir 1998) 74 EPD 45, 552, 156 F3d 167.